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Reviewed by Robert Rakoff (Hampshire College)Published on H-Environment (August, 2005)

Private Property and the Environment: Friends or Foes?

With property claims at the center of many recent environmental disputes, we are fortunate to have available Eric Freyfogle's latest volume for Island Books. Freyfogle draws on his background in environmental law and legal history to construct a smart and accessible analysis of the changing meaning of private property in American history and to offer a somewhat optimistic vision of a more ecologically sensitive property regime.

Freyfogle's argument is three-fold: that private property rights, never static, have undergone dramatic change over the course of 200-plus years of legislation and litigation; that property owners have never been free to do whatever they liked with their property, since private rights co-exist with the rights of other owners and the public at large; and that private owners' rights are (and should be) matched by their responsibility to promote the public interest, which today includes a responsibility to promote what Aldo Leopold called "land health." Freyfogle develops these points by reviewing the Lockean roots of Anglo-American property law and offering a brief history of leading court cases that staked out new interpretations of property during the expansion and consolidation of industrial capitalism. His goal is to demonstrate that just as the legal and cultural understanding of property changed to support and legitimize economic development, so those meanings can change now to better encompass the public's growing interest in protection of land and water. As evidence, Freyfogle points to several state court decisions that seem to recognize that property law must apply differently to ecologically different parcels of land. He argues that this legal recognition can lead to a wider understanding that property owners have an obligation to protect the ecological health and integrity of their holdings.

With this background established, Freyfogle takes on the libertarian arguments of conservative advocates of property rights. He shows not only that they are wrong about the historical and philosophical relationship of property rights and the state, but also that their trust in the market to resolve environmental disputes is misguided, since the public's legitimate interest in the uses of private property is ignored. Building on the notion that ownership entails responsibility to others, Freyfogle argues that it is wrong to pay owners to do the environmentally right thing, like preserving habitat for endangered species or conserving soil, since it is already part of their obligations as owners. In similar fashion, Freyfogle notes that regulation is necessary to overcome the fragmentation of private ownership, that there is no absolute right to develop one's property, and that on the ground there is a continuum, rather than a sharp split, between private and public ownership rights.

This is stirring, hopeful stuff. Perhaps too hopeful. Freyfogle seems to believe that sympathetic judges and legislators will respond to increasing public interest in environmental protection by designing and enforcing new limits on the power of private owners of land, water, subsurface minerals, and other pieces of the natural world. Freyfogle frequently cites Leopold's insistence on the importance of "land health," but he fails to heed Leopold's skepticism that such cultural and moral change would develop anytime soon. What's missing in Freyfogle's account is a more realistic assessment of the need for more far-reaching political change as a prerequisite for the development of a more environmentally sensitive property regime. This is something that conservatives understand all too well, as their long-term project of packing the nation's courts with property rights advocates demonstrates. If Freyfogle's book can serve as a guide for environmental activists and concerned citizens, perhaps we will see legislation and judicial decisions begin to swing toward greater protection of a wider public interest. But we also will need a clearer acceptance of the necessity for a more robust state role (as in most European nations, in which limits on owners' rights are much more legitimate) before we are likely to see a more effective political movement supporting the public's interest in private property.

This book deserves an extensive audience. As in his previous books for Island Press (The New Agrarianism, 2001; Bounded People, Boundless Lands, 1998), Freyfogle combines thorough scholarship with lively writing and a clear, forceful argument. It should find wide use in classes on the history and politics of property and land use, and it should be read by all citizens who struggle for sustainable land and water policies.